Crim Pro MBE- SEARCH AND SEIZURE Flashcards
Approach
time slice to time slice
for search to apply you need,
government agent or direction of cop or government agent
What is a search?
looking where you have a reasonable expectation of privacy
open field doctrine
no reasonable expectation of privacy in an open field
if you expose it to public, do you have a reasonable expectation of privacy?
nah
standard for search
probable cause
probable cause
reasonable person would conclude it is more like than not that a crime has taken place
for a search, you need a
warrant
warrant elements
1) neutral and detached magistrate
2) facts have to be fresh
3) person and places have to be specific
warrant for contents of home
search home
generally cops need to
knock and announce, but its still a valid search
can cops rely on informants
yes if reliable
when can you take something you find while doing a search
plain view (admissable)
once they find what they are looking for
search must stop
unlawful arrest from bad search
inadmissible, but not grounds for dismissal of indictment
protective sweep
look for more bad guys for safety
when can you do protective sweep?
only if reason to think there would be others
Exceptions to warrant
consent, search incident to lawful arrest, inventory search, exigent, auto exception
Consent
i let in the cop
who can consent
person or someone with apparent authority to control
what if locked bedroom door?
close call, but other person can maybe consent to house, but that person has a reasonable expectation of privacy in their room
what if 2 people can consent and one says no
cant search
if only one is present and they consent
valid search
search incident to lawful arrest
person or wingspan
if arrested in car, can you search passenger compartment?
yes if not tied up and can access it or reasonable velief thre is evidence
inventory search
can check person or car (think impound or booking)
exigent circumstances
reasonable belief it will be lost or destroyed (i.e. think witnessing flushing down the toilet)
auto exception
cop can follow as long as he wants; cant stop w/o reason to stop; if evidence of crime, can stop
if routine traffic stop
can only check back of car, but not passenger compartment or brief cases
Speeding and slurred speech?
yes. Now there is evidence of a crime
pull window down and blood from glove compartment
yes. evidence of crime
Amber alert
yes probable cause of crime
border
no warrant necessary
search outside US
US officials can search you on foreign land
dog sniff in public place?
not a search
Stop and Frisk (walking on street)
stop- cops can talk to you if there is reasonable suspciion crime is afoot
Frisk- further evidence i may be armed
Autostop
if generic checkpoint then okay
Custodial interrogation (Miranda rights)
statement is subject to Miranda if the statement is the product of a custodial interrogation
custodial interrogation
custody- objectively, you don’t feel free to leave
Interrogation- statement cops makes is trying to elicit some criminal response
can cop not give Miranda rights for a while?
yes.
If i blurt something out on my own, I volunteered
if under custodial interrogation you have rights to miranda. what is miranda
right to remain silent; can be used against you; right to attorney. if cannot afford one will be appointed one
if i request my lawyer all questioning must cease
all questioning must cease
Can i waive miranda
yes. knowingly and voluntary
Right against self incrimination
right not to incriminate yourself in testimonial evidene
can i make someone do a physical activity
yes. not a statement
lineup and id
lineups are okay, but they cannot be unnecessarily suggestive to single someone out
out of court id that is too suggestive but you are in court
but in court id is reliable, it will be valid and used against you
lineup
no right to counsel at a lineup prior to indictment
After indictment, lineup
you have right to counsel
right to counsel
fifth amendment right to counsel before charges or indictment
sixth amednment
right to counsel after charges
right to effective counsel
did the attorney deviate from the norms and reasonably probable that the verdict would not have been guilty
presumption of counsel
they were effective
can you waive right to counsel
knowingly and voluntary
right to counsel at all critical stage of proceedings
after indictment
no right to counsel
pre indictment
can two ds share one lawyer
yes, but if one conflict shows up then you cannot
jail cell and undercover cop to get john to talk
that violates the right to counsel
Guilty plea
voluntarily and intelligently so you know what you are getting yourself into
can you sever trial?
yes. if there is unfair prejudice.
impartiality for fair trial
right to unbiased judge
competency
d must be competent to understand charges and work with lawyer
jury trial
right to jury trial if the offense has a sentence longer than 6 months
jury should be
cross section of community
state trial with 6 members
must be unanimous
state trial 12 members
does not need to be unanimous
federal trial with 12 jurors
must be unanimous
exclusion based on race
violation of equal protection
public trial
right to public trial. all trials can be public except grand jury unless judge has overriding interest to close the trial
right to confrontation
you have right to confront and cross all witnesses even if out of court
co-defendants
1 d makes a confession implicating the other, I have the right to make sure you testify
Statements out of court which implicates D
whether statements were testimonial; i.e. not made during an emergency then it is inadmissable
if statement was not testimonial
i.e. police, 911 call, then it is coming in
Procedural rights- prosecution
must prove all elements in question beyond a reasonable doubt
procedural rights- defense
affirmative defense is preponderance of evidence by defense
criminal case presumption
no mandatory presumptions, it violates due process
grand jury
no right to even know they are investigation; not even present; exclusionary rule does not apply; even inadmissable evidence
grand jury witness
no right to counsel; can be outside.
double jeopardy
cant be tried for the same crime twice
first trial must have…
happened
when did trial number one begin
when jury is worn and impaneled or when first witness is sworn in
if trial 1 began you need
final verdict
final verdict exceptions
separate Sovreign- tried in two different states
state and federal court- yes
county a v county b- double jeopardy
what if d appeals a conviction
you can try it again
collateral estoppel
tried for robbery and found not guilty and want to try for felony murder
cannot try because you need an element in the second trial as first trial and that element cannot be met if you were acquitted
if elements and manslaughter are different you can try again.
cruel and unusual punishment
sentence must be proportional to the crime and similar to other criminals in other crimes
right to counsel
during sentencing and the right to remain silent
death penalty is not
cruel and unusual as long as there is procedural safeguards in place to prevent arbitrary or discrimiantory sentencing
cannot execute anyone
under 18 at time of crime or mentally challenged
